State v. Foster , 1 Mo. App. 1 ( 1876 )

Bakewell, J.,

delivered the opinion of the court.

This cause is brought here by writ of error, and, the defendant being sentenced to be hanged on the 19th of the present month (January, 1876), we are asked to stay the execution.

This we cannot do unless, on inspection of the record, we are of opinion that probable cause exists for the appeal, or so much doubt as to render it expedient to take the opinion of the Supreme Court. It has, therefore, become necessary to inspect the record. We have done this with great care, and find no probable cause for this appeal, and no doubt rendering it expedient to take the opinion of the Supreme Court thereon.

Certain papers are appended to the bill of exceptions, with the certificate of the clerk of the Warren Circuit Court attached that they are full and complete copies of what is described as “a supplemental motion to set aside the verdict and judgment, and affidavits in support of the same.” The certificate of the clerk further shows that these jjapers were filed with him after the bill of exceptions was made up, after the writ of error was issued from this court, and after the Warren Circuit Court had adjourned for the term.

This so-called “supplemental motion” and these alleged affidavits we cannot judicially consider, for any purpose whatever. The cause was pending here, and not in the Warren Circuit Court, at the time they were filed (Foster v. Rucker, 26 Mo. 494), and we have nothing whatever to do with them, as we can only consider matters of error committed by the court below. Parties will not be allowed to urge in this court points not made below.

These affidavits may have been intended to form the basis for an application to the trial court for a writ of error coram nobis, to correct some matter not apparent upon the record itself, or they may present facts of such a character as ¡should be addressed to another department of the government; but, whatever may be the intended office of this motion and these affidavits, they should not be forwarded to us in this shape.

For the reasons stated, we refuse to make any order •directing that the writ of error shall operate as a stay of proceedings on the judgment in this case.

All the judges •concur.